هه و
maich
871
THE decision given by Mr. RUSSELL with reference to the man NICKS, who took away, a hat from the residence of the late Mr. PELLICO will, it is hoped, be taken into con- sideration by H.E. the LIEUT.-Governor, The evidence does not appear to disclose any animus furandi, and the utmost guilt that could be brought to the prisoner is that of illegal possession. His statement was that he took the hat because he had mislaid his own, and was in a hurry to get away to a game of foot-ball-an explanation which is at least probable, and which is only upset by the evidence of Sergeant FOOTIT, who the prisoner said had suggested his taking the hat in order get away without delay. At all events, even if the case is regarded in its severest light, and the Magistrate was justi fied in concluding that the man had stolen the hat, the sentence, six months with hard labour, seems utterly disproportioned to the offence. The man, we hear, has been twenty- one years in the Army, and has certificates of good conduct during the whole of that time. It seems, therefore, inexplicable that he should have been guilty of a deli- berate theft. We refrain from further com- ment until able to obtain complete informa- tion on the subject; but it is earnestly to be hoped that the attention of the higher Au- thorities in the Colony will be directed to the matter, as unless there is some explana- tion of the matter which does not appear in the report of the case, justice has been meted out in the hardest manner to the unfortunate prisoner.
•
CAREFUL consideration of the whole of the circumstances brought forward in evidence in the case of the Policeman NICKs, induces us again to urge that this matter may be taken under the consideration of the higher Authorities in the Colony. It is impossible to understand the grounds upon which the Junior Magistrate came to his decision, or to reconcile that decision either with reason or justice; while the effects of the punish- ment awarded on the unfortunate prisoner- simple ruin-are such as should at least cause the matter to be thoroughly inves- tigated.
it
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The circumstances of the case may be briefly stated. The prisoner NICKS was sent by Mr. WILLCOCKS, Appraiser to the Supreme Court, to take charge of the house of the late Mr. PELLICO in Wyndham Street, and appears from the evidence that he went out company with Sergeant Foorrr, taking a hat which was in the hall in place of his own, which he left behind. On arriving at his quarters, in the Police Station, he asked a fellow policeman to take charge of the hat, as there was not room for it in his own chest, and this was done. Shortly after, Mr. WILL- COCKs arrived at the house, and being in- formed that the hat had been taken, be wrote a note to Sergeant FOOTIT, which the late Mr PELLICO's boy took, together with NICKS' hat, which had been left behind; and on Sergeant FOOTIT communicating the matter to NICKS, the hat was returned. The account of the affair given by NICKS in Court was straightforward and reasonable. He, with- out hesitation, admitted having taken the hat, stating that he did so at the suggestion of Sergeant FooTIT, who had said he had better take any hat or they would be too late for foot-ball. Sergeant FOOTIT, who was himself in the position of an accusé, denied this; and his statement appears to have been more cre- dited by the Magistrate than that of NICKS- though for what reason it is difficult to see and NICKS was sentenced-will it be be- lieved ?—to six months imprisonment with
ard labour.
The reasons which may have influenced the Magistrate in this decision may be stated as follows:--
(1) The man wasa Policeman, and if proved guilty of a larceny, it would be right that he should be more severely punished than_a person not in a position of trust..
(2) His asking a comrade to take charge of the hat may have been considered as a suspicious circumstance, showing a desire to hide it away.
(3) The China boy stated the prisoner's own bat
was hung" next to the one taken. But these points may be answered, and we cannot but think completely answered, as follows.-
(1) The man's being a Policeman is reason for a severe sentence; but is none for finding him guilty on less evidence than would be considered sufficient to convict another inan, and the sentence passed was too severe even for a policeman, considering the nature of the offence.
(2) The fact that the prisoner asked a comrade to take charge of the hat might very reasonably be considered as showing that he made no secret of having taken the hati
that he had no bad motive—no animum furandi in doing so; but that he intended to return the hat, and was specially desirous to take care of it.
(3) The China boy's statement that the prisoner's hat was hung" next to the one taken, appears only to mean that the prisoner hung it there when he came in; not that it was hanging there all the time; and this is confirmed by the fact that Mr. WILLCOCKS said he saw the prisoner had what he believ- ed was his own hat in his hand when he was upstairs.
The above is a fair review of the whole circumstances of the case, and we put it to any reasonable men whether they would con- viet anyone of theft upon the evidence, and in face of the straightforward, and perfectly
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reasonable explauation which the man at once gave at the Police Court? In addition, it has to be urged in his favour that he has been twenty-one years in the Army, and has good conduct certificates for the whole period. Was it likely that he would throw away a character sustained all that time for such a miserable gain as a new hat? That he com- mitted a foolish act there seems to be no doubt; but more than that cannot be believed.
1087
It is certain that scarcely any Jury could be brought to convict in such a case; and it is further certain that if any Jury could be found to return a verdict, no Judge would, in such a case as this, have passed so severe a sentence as that which has been pro- nounced. With the responsibility resting upon him of having to act both as Judge and Jury, a Magistrate or Summary Judge is bound to construe every Act bearing on the case, and every fact given in evidence in the strictest manner, that is, strictly in the sense of in the prisoner's favour; and if the case was one where most Juries would acquit, or even where upon any reasonable view of the evidence the prisoner might be innocent, it was the bounden duty of the Magistrate either to acquit him or commit him for trial. We cannot understand why, at all events, this last step was not taken. If the matter was looked upon as so important that a punish- ment of six months' imprisonment with hard labour should be inflicted, it was a case for the Supreme Court, and not for the Junior Magistrate. Important enough it is now-- seeing that, if nothing be done, NICKS will be a ruined man-and it is sincerely to be hoped that, if the Executive do not feel them- selves called upon to grant a free pardon tox the prisoner, it may be found possible yet to allow him a fair trial before a Jury, and with proper opportunity of advancing those points in his favour, which may easily have escaped the consideration of an uneducated man suddenly arraigned on a most serious charge.
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